Opinion 15-218

December 3, 2015


Digest:         A judge is not disqualified from presiding over a criminal case merely because the District Attorney has launched a collateral attack on the judge’s pretrial rulings in another forum.


Rules:          Judiciary Law § 14; 22 NYCRR 100.2(A); 100.3(B)(1); 100.3(E)(1); 100.3(E)(1)(a)(i); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 100.3(E)(1)(a)-(f); Opinions 14-58; 14-34; 13-75; 13-41; 12-94; 12-07; 11-64; 10-38; 02-96; 00-10; 98-69; 97-102; 94-46; People v Moreno, 70 NY2d 403, 405 (1987).


         A judge, who has obtained a court order permitting him/her to reveal certain information in order to seek guidance from the Committee, asks whether he/she may continue to preside in a particular criminal case. It appears the District Attorney disagreed with the judge’s pretrial rulings on a particular issue, and then collaterally attacked the judge’s pretrial rulings in another forum by seeking to challenge and/or investigate the judge’s general procedures in chambers with respect to such rulings. After a delay, the District Attorney moved to disqualify the judge in that case, because (1) there was unspecified “pending litigation” between the judge and the District Attorney and (2) the judge purportedly had a “personal interest” in ensuring that the defendant was acquitted in order to avoid “further scrutiny and criticism” of the judge’s pretrial decisions through the appellate process, which could only occur if there was a conviction followed by an appeal. The inquiring judge has “absolutely no reservations” about being able to remain fair and impartial in the case.

          A judge must respect and comply with the law (see 22 NYCRR 100.2[A]) and must not be swayed by “public clamor or fear of criticism” (22 NYCRR 100.3[B][1]). A judge must disqualify him/herself where specifically required by rule or statute (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]), including when the judge has a personal bias or prejudice regarding a party (see 22 NYCRR 100.3[E][1][a][i]), or knows that he/she has an economic or other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c], [d][iii]). Where no specific provision expressly disqualifies the judge, the judge still must consider whether his/her impartiality could nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). Where disqualification is not mandated under these objective tests, however, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]), and therefore may preside, unless he/she doubts his/her own impartiality in a specific matter (see Opinion 11-64).

         The Committee has issued many opinions concerning a judge’s obligations when disappointed litigants or attorneys mount collateral attacks on the judge and/or the judge’s judicial decisions, such as federal lawsuits, Article 78 proceedings, complaints to the Commission on Judicial Conduct or other government agencies, and bogus multi-million dollar liens on the judge’s real property (see e.g. Opinions 14-58; 13-75; 13-41; 12-94; 12-07; 10-38; 00-10; 98-69; 97-102; 94-46). Even where the attorney or litigant sues the judge directly, “where the cause of action is directed to the judge's institutional or official role, and ‘there does not appear to be any personal or direct financial or other economic interest on the part of the judge in the outcome of [the] lawsuit,’ the Committee has advised that disqualification is discretionary, based solely on the judge’s conscience” (Opinion 12-94 [citations omitted]). Conversely, a judge who is pursuing an expungement proceeding and “all available civil remedies” in connection with a criminal defendant’s vexatious lien filing may continue to preside in the criminal case, provided the judge determines he/she can be fair and impartial, a matter confined solely to the conscience of the particular judge (Opinion 14-58). Similarly, the Committee has advised that a judge who can remain fair and impartial is not disqualified merely because an attorney or litigant has filed a formal complaint against the judge or sought an official investigation (see e.g. Opinions 10-38; 97-102; 94-46). Indeed, to help prevent unnecessary disruption of judicial proceedings based on purely tactical accusations of judicial misconduct by attorneys or litigants, the trigger for mandatory disqualification is when the Commission on Judicial Conduct charges the judge with misconduct in a formal written complaint (see Opinions 10-38; 02-96; 97-102).

         In the present inquiry, the District Attorney disagreed with the judge’s pretrial rulings and launched a collateral attack on these rulings. Although a prosecutor’s scope of action for such collateral attacks may potentially be broader than that of other attorneys or litigants, the Committee believes a prosecutor’s disagreement with a judge’s pretrial rulings does not, without more, suggest any ethical impropriety in the judge’s attempts to follow applicable law when making such decisions (see e.g. Opinion 14-34). Accordingly, the fact that the District Attorney’s collateral attack has resulted in “pending litigation” between the judge and the District Attorney, as a direct result of the judge’s official judicial conduct, does not require the judge’s disqualification (see generally Opinions 14-58; 12-94; 12-07).

         The District Attorney’s claim that the inquiring judge would actually acquit a criminal defendant to avoid possible appellate review of the judge’s pretrial rulings is sheer speculation and does not identify any cognizable “interest” in the proceeding before the judge. Indeed, a purported “interest” in not being reversed on appeal could arguably underlie every decision of a nisi prius court; this is not, and cannot be, a prohibited “interest” that requires a judge’s disqualification.

         As the Committee can discern no reasonable, objective basis to question the judge’s ability under the facts presented, resolution of the recusal motion is confined solely to the inquiring judge’s discretion (see People v Moreno, 70 NY2d 403 [1987]). As the judge has concluded he/she can be fair and impartial, the judge may preside.